R v Gray - [2016] QCA 322

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gray [2016] QCA 322

PARTIES:

R
v
GRAY, Christopher John
(applicant)

FILE NO/S:

CA No 174 of 2016
SC No 1063 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 24 June 2016

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2016

JUDGES:

Margaret McMurdo P and Morrison JA and McMeekin J
Separate reasons for judgment of each member of the Court, Morrison JA and McMeekin J concurring as to the order made, Margaret McMurdo P dissenting

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to five counts of drug-related offences, namely unlawful possession of the dangerous drug methylamphetamine; unlawful possession of the dangerous drug methylamphetamine, where the quantity exceeds over 2.0 grams; unlawful possession of a relevant substance 1, 4-Butanediol; possession of a digital scale for use in connection with the commission of the crime of supplying a dangerous drug; and possession of a mobile phone in connection with the commission of the crime of supplying a dangerous drug – where the applicant was sentenced to five years for the count of possession of a dangerous drug exceeding 2.0 grams and one year for the other counts, to be served concurrently – where the applicant was on parole for a previous drug offence when he committed the offences the subject of this appeal – where the applicant was held on remand for breaching the conditions of the parole, namely, committing another offence – where the applicant was therefore in custody for 471 days before he was sentenced for the commission of these offences – where the learned sentencing judge did not take the 471 days of non-declarable pre-sentence custody into account – whether the learned judge erred and the sentence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A(1)(a)

R v Carter [2016] QSC 86, cited
R v Cone [2010] QCA 274, considered
R v McCusker[2015] QCA 179, considered
R v Skondin[2015] QCA 138, considered

COUNSEL:

The applicant appeared on his own behalf
C M Kelly for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: The facts and issues of this application for leave to appeal against sentence are set out in Morrison JA’s reasons. The applicant was charged with five offences against the Drugs Misuse Act 1986 (Qld) and five related summary offences. The most serious offence (count 2) was possession of methylamphetamine, in excess of 2.0 grams, for which he was sentenced to five years imprisonment with parole eligibility on 24 February 2018, with lesser concurrent sentences on the remaining counts. He committed these offences whilst on parole for similar offending for which he was sentenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gray

Details

AGLC: R v Gray [2016] QCA 322
Case: [2016] QCA 322
Decision Date: 2 December 2016

CaseChat Overview and Summary

In the case of R v Gray, the applicant appealed against the sentence imposed for multiple drug-related offences, contending that the sentence was manifestly excessive. The applicant pleaded guilty to five counts, including unlawful possession of dangerous drugs and possession of items used in connection with drug supply. The applicant was sentenced to five years for one count and one year for the others, to be served concurrently, without considering the 471 days spent in custody before sentencing. The court was tasked with determining whether the sentence was manifestly excessive, particularly in light of the applicant's prior parole violation leading to pre-sentence custody.

The central legal issue was whether the sentence imposed was manifestly excessive given the applicant's pre-sentence custody. The applicant argued that the learned sentencing judge failed to account for the 471 days of non-declarable pre-sentence custody, which should have influenced the sentence. The court considered whether this oversight rendered the sentence manifestly excessive and whether the sentence was proportionate to the crimes committed.

The court, after reviewing the case, concluded that the sentence imposed was appropriate and did not err in not considering the pre-sentence custody. The court found that the sentence was supported by the case of Cone and was not manifestly excessive. Morrison JA and McMEEKIN J agreed that the sentence was proportionate and did not warrant an appeal, leading to the refusal of the applicant's leave to appeal.

The court's final order was to refuse the application for leave to appeal against the sentence. This decision was made based on the court's finding that the sentence was not manifestly excessive and was in accordance with the relevant legal principles. The refusal of leave to appeal upheld the sentence as determined by the sentencing judge.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view Cone supports the sentence imposed here. I am unpersuaded that the sentence was manifestly excessive.Conclusion For the reasons expressed above I would refuse the application for leave to appeal against the sentence. I propose the following order:1.The application for leave to appeal against sentence is refused. McMEEKIN J: I agree with the reasons of Morrison JA and the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Gray [2016] QCA 322
PARTIES:	R v GRAY, Christopher John (applicant)
FILE NO/S:	CA No 174 of 2016 SC No 1063 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 24 June 2016
DELIVERED ON:	2 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2016
JUDGES:	Margaret McMurdo P and Morrison JA and McMeekin J Separate reasons for judgment of each member of the Court, Morrison JA and McMeekin J concurring as to the order made, Margaret McMurdo P dissenting
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to five counts of drug-related offences, namely unlawful possession of the dangerous drug methylamphetamine; unlawful possession of the dangerous drug methylamphetamine, where the quantity exceeds over 2.0 grams; unlawful possession of a relevant substance 1, 4-Butanediol; possession of a digital scale for use in connection with the commission of the crime of supplying a dangerous drug; and possession of a mobile phone in connection with the commission of the crime of supplying a dangerous drug – where the applicant was sentenced to five years for the count of possession of a dangerous drug exceeding 2.0 grams and one year for the other counts, to be served concurrently – where the applicant was on parole for a previous drug offence when he committed the offences the subject of this appeal – where the applicant was held on remand for breaching the conditions of the parole, namely, committing another offence – where the applicant was therefore in custody for 471 days before he was sentenced for the commission of these offences – where the learned sentencing judge did not take the 471 days of non-declarable pre-sentence custody into account – whether the learned judge erred and the sentence is manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A(1)(a) R v Carter [2016] QSC 86, cited R v Cone [2010] QCA 274, considered R v McCusker[2015] QCA 179, considered R v Skondin[2015] QCA 138, considered
COUNSEL:	The applicant appeared on his own behalf C M Kelly for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent